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October 4, 2010

"Erie and Federal Criminal Courts"

The title of this post is the title of this fascinating-looking new paper from Wayne Logan available via SSRN.  Here is the abstract:

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms).  While police resort to such laws as pretexts to stop and arrest individuals has been frequently addresed, this article provides the first analysis of how federal courts actually interpret and apply the laws.  In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article establishes, Erie analysis indeed plays a key role in federal criminal cases and it does so in the unusual context of malum prohibitum laws, otherwise customarily addressed by low-level state or local trial courts.  Federal courts must determine whether police seizures are reasonable for Fourth Amendment purposes, based on their assessment of whether the behavior in question could constitute a violation of state or local law.  If not, the exclusionary rule is triggered, likely resulting in dismissal of the federal prosecution. In such circumstances, state and local criminal laws retain their non-federal status while being applied by federal courts, much as occurs in civil diversity cases.

As the article explains, however, as Erie has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions.  Federal outcomes result not in civil liability but rather deprivations of physical liberty without the possibility of parole, and have significant implications for federalism and separation of powers, undercutting the historic police power authority of state and local governments.

The article, in short, marks the first effort to examine the impact of the “Erie megadoctrine” in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever-greater significance in the years to come.

October 4, 2010 at 05:03 PM | Permalink

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